Landowners hope juries will decide compensation

Associated Press / Brownsville Herald
November 12, 2008

(AP) - A federal judge will soon decide whether private landowners along the Rio Grande will have juries of their peers or a court-appointed panel of land experts decide how much the federal government owes them for land it takes to build the border fence.

The first trials are scheduled to begin in March, but U.S. District Judge Andrew Hanen's decision - expected in coming weeks could mean the difference in thousands of dollars to people who have to turn over their property to the federal government for the fence.

Advocates for the property owners say that jury trials would be their first chance to make their case in a process that has left them virtually powerless.

Of the 670 miles of fencing the Department of Homeland Security plans to build along the U.S.-Mexico border, the staunchest opposition arose in the Rio Grande Valley where rich agricultural land, in many cases passed down over 200 years, runs to the banks of the Rio Grande.

The Justice Department expects to have about 270 condemnation lawsuits against Valley landowners. Most have settled, but federal lawyers expect that about 80 holdouts could carry their cases all the way to trial.

The government opposes jury trials, warning Hanen in a brief that such a plan could drag out the cases for more than a year, clogging an already busy court system. Construction of the fence will continue on schedule, as these lawsuits only determine how much the landowner will be reimbursed.

In some cases, visits to the condemned land are necessary and the government argues this could be more efficiently done by a three-member commission. It could also be hard to find enough open-minded jurors in a region with such widespread disapproval of the border fence, the brief said. A commission of experts however, would accelerate the process and be more likely to offer consistent payments to landowners, government lawyers said.

"In the absence of a commission, each jury verdict may be vastly different from another; landowners have every incentive to hold out for trial, proffer inflated values, and hope for the best," Assistant U.S. Attorney Paxton Warner wrote.
Private attorneys have a different view.

Court-appointed land commissioners typically have real estate backgrounds. Eddie Vassallo, a Dallas lawyer who has spent nearly 40 years handling condemnation cases, said they come to a case with preconceived opinions about land value, where a jury makes an independent decision.

"There's an inbuilt prejudice to this," said Eddie Vassallo, a Dallas-based attorney who has been handling condemnation cases for 39 years, noting that the government has the upper hand in deciding it needs a citizen's land and when it needs it.

Michael Rosen, a Tampa, Fla. eminent domain attorney, has worked both sides of condemnation cases.

"The federal system is very unfriendly (for landowners)," Rosen said. "If you go before a commission and they're hearing a thousand cases, the commissioners are less likely to listen to the property owner that has the case further down the line."

Rosen and Vassallo both said land commissions generally award less money than juries. The government prefers this, since taxpayers will be footing the bill.

Kimberli Loessin, a Houston attorney representing several Valley landowners, said Hanen shouldn't be worried about the case dragging on.

"We believe the reality is that not every lawsuit filed will result in a trial and many cases can and will be tried together," Loessin said by e-mail. "These cases can be efficiently tried before juries." Vassallo said every one or two cases that go to trial lead to dozens more being settled.

Loessin said the government has already streamlined a process that was heavily stacked in its favor to start. In April, Homeland Security Secretary Michael Chertoff waived a host of environmental laws that outlined a rigorous study and approval process for the border fence.

Hanen has been sympathetic to landowners. While he has consistently ruled in the government's favor on border fence cases, his approach has been far more deliberate than the government would have liked. He gave landowners an opportunity to appear in court and voice their concerns even when the law did not require it.

"This is the only time in a federal (eminent domain) case where the landowner has any say-so in what happens to them," Vassallo said.

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